Opinion
CRIMINAL 19-203
04-18-2022
UNITED STATES OF AMERICA v. KEVIN WATSON, Defendant.
MEMORANDUM ORDER
W. Scott Hardy, United States District Judge.
In his Position With Respect to Sentencing Factors (Docket No. 309), Defendant Kevin Watson objects to his classification as a career offender predicated on his prior Pennsylvania state court convictions of delivery/possession with intent to deliver heroin. More specifically, Defendant argues that his prior convictions “are not drug trafficking offenses as defined by the Sentencing Guidelines, but are inchoate by definition, ” and he further disputes that those convictions are controlled substance offenses under the Guidelines because “Pennsylvania's definition of heroin is broader than the definition of heroin under the Federal Controlled Substance Act.” (See Docket No. 309, ¶¶ 3, 5-8, 13-19).
The Government responds that Defendant's prior convictions are not inchoate, and further maintains that they are career offender predicates. (See Docket No. 312). As to Defendant's argument that Pennsylvania's definition of heroin is broader than the federal definition of heroin, the Government notes that various defendants in this District have advanced this same argument following its assertion in United States v. Davee Ward, Crim. No. 18-48. (See id. at 4). In Ward, the Honorable Cathy Bissoon overruled the defendant's objection that his prior Pennsylvania conviction for distribution of heroin does not qualify as a career offender predicate under the sentencing guidelines. See Ward, Crim. No. 18-48, 2021 WL 5604997, at *1-2 (W.D. Pa. Nov. 30, 2021). Ward is now on appeal at Case No. 22-1281.
See e.g., United States v. Espy, No. 2:18-CR-00332, 2022 WL 247833, at *4 (W.D. Pa. Jan. 27, 2022) (describing argument and deferring ruling pending a hearing); United States v. Gordon, Crim. No. 19-141 (same issue pending a hearing currently scheduled in June 2022). As for Defendant Watson, the Government points out that he makes the same argument raised in Ward, that is, his prior heroin trafficking offenses are not controlled substance offenses because Pennsylvania criminalizes all types of isomers of heroin, while federal law only criminalizes optical isomers of heroin. (See Docket Nos. 309, ¶¶ 13-19; 312 at 5).
In his Reply to the Government's Response, Defendant continues to press his inchoate and career offender predicate arguments. (See Docket No. 313). He also notes that “the issue concerning isomers and the PA statute [in] question is currently being argued” in Espy and Gordon, and submits that a “positive ruling” in either of those cases could “drastically reduce” his projected sentence. (Id., ¶¶ 12, 13). Consequently, Defendant requests that the Court “defer a ruling and the upcoming sentencing” until those cases are fully litigated. (Id., ¶ 14).
The Court finds persuasive Defendant's suggestion that this matter should be “deferred, ” which the Court construes as a request to stay the case. In addition to the cases Defendant notes in this District, the relevant issue currently is being litigated in the Third Circuit Court of Appeals in United States v. Lewis at Case No. 21-2621. At issue in Lewis is whether a state conviction counts as a “controlled substance offense” under U.S.S.G. § 4B1.2(b) whether or not the state's definition of that controlled substance fits precisely within the federal definition of that term at sentencing under the Controlled Substances Act. (Case No. 21-2621, Docket No. 28 at 15). Given that the Third Circuit's decision in Lewis will likely conclusively resolve whether Defendant's prior controlled substance convictions qualify as career offender predicates, the interests of justice and considerations of judicial economy dictate that this case be stayed pending disposition of Lewis.
This issue also arises in United States v. Paredes and United States v. Daniels pending in the Third Circuit at Case Nos. 21-2657 and 21-3310. Paredes and Daniels have been stayed pending a decision in Lewis. (See Case No. 212657, Docket No. 12; Case No. 21-3310, Docket No. 16).
In view of Defendant's request to “defer the sentencing” until cases bearing on the issue he raises can be litigated, (see Docket No. 313 at 3), any delay caused by the stay is excluded in the interest of justice. See United States v. Lacerda, 958 F.3d 196, 219-20 (3d Cir. 2020) (factors to consider for assertion of due process right to speedy sentencing include: “(1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right; and (4) any prejudice suffered by the defendant.”).
Accordingly, the Court enters the following Order:
AND NOW, this 18th day of April, 2022, IT IS HEREBY ORDERED that this case and all remaining presentence deadlines, as well as Defendant's sentencing hearing, are stayed pending the Third Circuit Court Appeals' disposition of United States v. Lewis at Case No. 21-2621 and further order of this Court.